This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Last night, the Commons national security committee conducted its lengthy clause-by-clause review of bill C-51. The government MPs refused every opposition amendment and only passed small amendments of their own. These amendments were in fact those discussed (and analyzed) here.

I will not comment here on the nature of this process, and what it says about our current capacity for reasoned debate. Colleagues have already commented and continue to comment (correctly) on the state of our democracy, as have members of the media. I will only say that this process is night and day compared to the more important role Parliament played in both the enactment of the original CSIS Act in 1983/84 and that of the first Anti-terrorism Act in 2001.

Rather, in this post, I want to explore what more we learned about C-51 from the committee process, and especially the statements by the government lawyers in attendance and the prepared speaking notes of the government MPs, as they defeated every opposition amendment. And I want to focus specifically on the controversial CSIS powers.

1. Powers will allow CSIS to breach law or the Charter, with warrant domestically

At issue is proposed s.12.1(3): "The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charterof Rights and Freedoms or will be contrary to other Canadian law, unless the Serviceis authorized to take them by a warrant issued under section 21.1" (emphasis added).

Basically, this has been read by almost every lawyer outside government whose opinion I have access to as "the Service can violate the Charter -- and potentially any Charter right -- if it has a warrant".

A couple of key points:

This is very different from search and arrest warrants -- those are tied to Charter rights that have qualifying language in the right itself (Section 8 of the Charter only guards against unreasonable searches and seizures. Section 9 only protects against arbitrary detention). A search or an arrest warrant satisfies this qualifying language, and therefore a government acting under such a warrant does not breach the Charter.

Most other Charter rights are not imbued with built in qualifying language. There is no concept of permissible free speech, or arbitrary cruel and unusual treatment, or appropriate mobility rights to enter or leave the country or limited habeas corpus.

Such rights can only be trumped under s.1 of the Charter (or if the government uses the s.33 notwithstanding clause, which it is not doing in C-51). Section 1 reads: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

But s.1 issues simply aren't dealt with through the peculiar mechanism of a warrant -- as noted below, procedurally to do so is a very concerning approach.

But, not surprisingly, the government now asserts that s.1 is exactly what they have in mind. And because their proposed system supposedly allows an advance s.1 "get out of jail" blessing for a subsequent Charter right breach, there is no Charter violation:

Government witness: "The suggestion that the bill is designed to actually have a judge violate the charter or be co-opted into violating the charter... that is not what the bill does. What the bill does is precisely the opposite. It puts the judge in the position of deciding whether or not the charter would be violated by the proposed measure. If it would be violated, that is the end of the matter. No one, including the judge, can authorize the measure. ... The judge in fact is being put in precisely the position of looking at the facts of a particular case and determining whether or not the rights that are at issue are reasonably restricted. That is precisely one of the functions allowed a judge under the charter. Section 1 provides for that determination and that's what the bill in fact provides for. So it is not correct, in our submission, that in fact the bill is in any way co-opting the court or anyone else into sanctioning a charter violation. It goes to a judge precisely for that reason, to make sure the charter will not be violated, and the charter violation occurs when a particular right is restricted in a way that is not reasonable, and that is the inquiry that a judge makes under the statute. ... What it turns on is section 1 of the charter which provides that the rights referred to in the charter are guaranteed only to the extent that they are not restricted by reasonable limits prescribed by law in a free and democratic society. That what it turns on."

Our Response:

This legal theory is novel both on substance and radical in terms of procedure. (For footnotes, see p.23 and following here).

Substantive Objections

It is certainly true that s.1 has been used to justify administrative action in violation of the Charter under what is known as the Dore test, in after-the-fact judicial consideration of such actions.

But in every instance where the Dore approach to s.1 has been applied, the delegated power is much more closely anchored to a limited and specific range of possible government conduct, and the Charter rights potentially at play are not “the entire Charter”.

In C-51, every possible Charter right may be at issue, if its infringement is viewed as necessary for threat reduction. Put another way, the discretion to violate the Charter at issue here is much less bounded than any equivalent of which we are aware. Moreover, the CSIS Act is not your typical administrative regime; it is one that by design skates very close to the edge of what the state should be doing in a democratic society.

Even more critically, we only reach s.1 in the first place where the rights limitation is “prescribed by law”.

“Prescribed by law” is rarely an issue in constitutional disputes, since the government action in question is either expressly authorized in a stature or is sufficiently linked to it to meet the “prescribed by law” standard. In challenges to legislative action, the Supreme Court takes a “flexible approach to the ‘prescribed by law’ requirement as regards both the form (e.g., statute, regulation, municipal by-law, rule of a regulatory body or collective agreement provision) and articulation of a limit on a Charter right (i.e., a standard intelligible to the public and to those who apply the law).”

In bill C-51, neither this form requirement nor the intelligible standard expectation is met. We cannot predict in advance which Charter right will be violated, or the specific circumstances or nature of the breach. That is a matter that will be decided on a case-by-case basis.

As a consequence, the bill constitutes an even more aggressive manifestation of the “prescribed by law” shortcomings identified by the Supreme Court in provisions that once governed court-authorized bail conditions, as in Morales. It offers exactly the sort of vagueness and imprecision that disentitles the measure to a full s.1 inquiry. In the proposed new CSIS powers, the only statutory framework translates into: “you can do anything to ‘reduce’ broadly defined threats to the security of Canada, including violating every right in the Charter, so long as it doesn’t do bodily harm, violate sexual integrity or obstruct justice”.

We are not aware of any circumstances in which the Supreme Court has concluded that such an open-textured invitation to violate the Charter is “prescribed by law”. That is probably because we have never before seen such an open-textured invitation.

This would be bad enough, but we also believe that this system amounts to a drafting of judges into the legislative function of limiting Charter rights through s.1-style justifications. As suggested, it differs so significantly from the traditional search warrant process that we do not accept that approach as a plausible analogy. Moreover, the present system is dramatically different from the “investigative hearings” process upheld by the Supreme Court the last time judicial independence was a live issue in a national security context.

Most notably, a key ingredient saving the latter process from being unconstitutional was the fact that investigative hearings are held presumptively in open court. As we discuss next, that safeguard does not exist in bill C-51. Moreover, a strong minority of the Court concluded that even the relatively banal investigative hearing system did violence to the role of judges. The dissent concluded that judges were in effect being made into police investigators, even though investigative hearings are adversarial hearings held in open court.

Bill C-51 concentrates the legislative power to authorize and limit Charter rights on “section 1 reasonableness grounds” into the hands of those Federal Court judges who have been specially designated to sit in security cases, in secret. This is dramatically different from (and much more concerning than) investigative hearings.

It is radically different from what judges do under s.1. Judges adjudicate whether a Charter breach by another branch is prescribed by law and demonstrably reasonable in a free and democratic society. They do not pre-authorize a Charter breach because they think it reasonable and necessary. That is not what they have ever done, and it profoundly contorts their role.

Procedural complaints

And then we get to the procedural objection. The government's exotic C-51 s.1 analysis will be conducted in a warrant proceeding. These are ex parte (only government party present) and in camera (closed) proceedings, done in advance of government Charter breaching action without necessarily knowing its full contours (as in, how it will play out on the ground) and without a full evidentiary record. So the hearings will be done in secret, with only the judge and the government side represented, and no real full facts on what exactly has happened to the the target (or whether the target has been misidentified or otherwise constitute a "false positive"). The person affected by the illegal activity will not be represented — in fact they will often never know who visited the misfortune on them, depending on what is done to them. They cannot defend their rights. No civil rights group will be able to weigh in. There is no appeal system.

This is unlike any s.1 analysis done by the courts in other circumstances -- usually a profoundly methodical process with a developed factual record.

And so when you place the substantive concerns together with the procedural complaints we end up with a government's legal theory that goes from novel to "radical". The government wishes to breach every and any right, with prior blessing by a court performing the dirty work of limiting indisputable Charter rights in a secret, closed process, without appeal and with the government the master of all facts (and the only party formally represented).

We are just two lawyers, and the government has its own lawyers. And lawyers argue. But we are hardly alone (to say the least) in saying this is all seriously unconstitutional. And so since the government persists with this theory, this matter will now have to be litigated. Parliamentarians should appreciate, however, that in enacting this extreme measure, they place the burden of defending foundational concepts of our system of democracy and law on the shoulders of underfunded non-profits, in litigation where the government will challenge their right to do so at every turn.

2. What Will CSIS Do With its Powers?

A question many of us have asked is "what does CSIS need this vast new power to do". In their speaking notes, the government has made persistent reference to “CSIS needs to be able to speak to parents of radicalizing children” – something that CSIS reportedly does already and at any rate does not justify the astonishing breadth of the new powers.

So it was both interesting and disturbing to see the government's response to Green Party and NDP efforts to limit CSIS's powers to exclude, e.g., detention.

Violate Mobility Rights

First, one government witness used limitations on mobility rights as an example of what might be limited by CSIS measures (that is, entering and returning to Canada).

Detain

On detention, a key question is whether the government has really, truly wanted CSIS to be in the detention business. The responses on this have either been non-responses or confusing. The government tabled and the committee passed a "greater certainty" provision saying CSIS will have no "law enforcement powers". But for the reasons we discuss here, this does nothing to clarify this question -- it still leaves open the prospect of "threat reduction detention". And our views seem confirmed by what then happened in clause-by-clause. And one government witness said this:

The concept of detention means different things in different contexts. In some cases it may give rise to treatment that would amount to bodily harm, but not necessarily. People are detained at the border for inspection purposes but they don't necessarily find themselves subjected to bodily harm or treatment that is referred to in the act.

If I might, I would just indicate that the reference to CSIS not having law enforcement powers, as the member indicated, was intended to address the concern that certain powers associated with a law enforcement agency were not being given to CSIS. The important point that was reflected in the drafting is that CSIS itself as an agency cannot take it upon itself to exercise those powers. It has no power and never has had a power to detain or arrest or imprison. Nothing in this bill changes that.

When the concept of detention is used for example, again, to repeat myself, the services never had a power to detain. That is a peace or police officer power that is either conferred by common law or by a statute. It doesn't find itself in CSIS. The point is that in the course of CSIS operations, they may in fact identify opportunities to take measures to interfere with a person's movement. What the act provides is, if CSIS wishes to do that, and if to do that would contravene the law, they have to obtain judicial authorization to do it. The important point in the legislation that we tried to reflect in the drafting was the it was never up to CSIS to make that decision on its own. It would always fall to a judge to make that determination.

The government MPs then defeated a Green amendment that would prohibit detention, saying "The amendment that is on the floor right now is not consistent with the intent of the bill. It would unduly narrow the range of possible measures that CSIS could take, and would so weaken CSIS's capacity to carry out its threat reduction mandate."

Short version: CSIS hasn't had detention in the past, but with judicial authorization it will be able to detain after C-51, and that is exactly what the government has in mind.

I would add that nothing in the bill requires a warrant where the detention takes place overseas, at least for non-Canadians. C-51 only requires a warrant where the conduct would violate Canadian law or the Charter. These instruments rarely extend to overseas government conduct. And so the trigger requiring the warrant will rarely be pulled. Under current Federal Court jurisprudence, the Charter only applies overseas when, in essence, the Canadian government conduct would violate international human rights law and (a more doubtful requirement) it is directed at a Canadian. We think the last requirement very doubtful, but it is what the Federal Court has said.

So the clear: C-51 combined with present understandings of the Charter would allow overseas detentions of foreign nationals, without warrant or judicial supervision.

Rendition

Another concerning comment: According to government witnesses, the government amendment specifying CSIS does not have "law enforcement powers" will not bar "rendition". In the words of the government witness: "just the reference to 'rendition' or 'removal to another state' is not necessarily a law enforcement power. So to the extent that the amendment refers to 'law enforcement', it may not be a like thing."

In recent history, rendition is the process by which a person is kidnapped from one jurisdiction and taken to another, sometimes for trial and sometimes for abusive interrogation.

This is not to say CSIS would do this. But in truth, the Service has done forms of detention and removal of Canadians to foreign jurisdictions before. With warrant, this treatment of Canadian would now be potentially legal.

If the treatment related to overseas treatment of a foreign national, again under current understandings of the Charter, a warrant would not be required.

We do not propose that CSIS's culture would lead it to the excess of other services who have practiced detention and rendition. We also do not believe our law should ever be degraded to the point where that excess becomes legally permissible.

3. The Foreign Analogies

Last night, the government persists in the view that other Five Eyes countries (or at least the UK, US and Australia) have powers to the open ended degree C-51 proposes for CSIS. Specifically: the power to breach laws and the constitution, in domestic operations.

I have written on this before here and here. Kent Roach has since spoken to his contacts. We have consulted with people with considerable experience in the UK. Since last night's repeated assertion, I have re-written to colleagues in the UK, Australia and the United States, some of whom are consulting with members of their security services. I await full results, but again so far, no one has been able to identify close analogues.

My concern right now is that the government is pointing to much more modest powers possessed by foreign domestic services, adding to those the sorts of powers exercised by other services only in their international operations, and then has proposed a package for CSIS that gives them sweeping powers both domestically and internationally that other like-countries just don't have.

Nothing stops the government from releasing its comparative analysis. But it refuses to do so, making it very difficult to determine whether it is justifying apples with references to oranges.

And that is a symptom of how this debate has unfolded. This is lamentable on many different levels.